New York State Court of Claims

New York State Court of Claims

MARTIN v. THE STATE OF NEW YORK, #2008-042-503, Claim No. 112295, Motion No. M-74401


Synopsis


This motion is brought by the defendant to dismiss the claim pursuant to CPLR Rule 3211 (2), (7) and (8) for lack of personal jurisdiction and/or subject matter jurisdiction, and for failure to state a cause of action. The motion is unopposed and the court finds that the claim is not timely and is hereby dismissed.

Case Information

UID:
2008-042-503
Claimant(s):
ANTHONY T. MARTIN
Claimant short name:
MARTIN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112295
Motion number(s):
M-74401
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
ANTHONY T. MARTIN, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 19, 2008
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This matter comes before the court on defendant’s motion to dismiss the claim pursuant to CPLR Rule 3211 (2), (7), and (8) for lack of personal jurisdiction and/or subject matter jurisdiction and for failure to state a cause of action. This motion is unopposed.
  1. Notice of Motion, filed November 15, 2007
  2. Affirmation of Joel L. Marmelstein, Esq., dated November 14, 2007
  3. Exhibits A - D, annexed to the moving papers
________________________________________

The underlying claim is vague, but appears to be a claim for personal injuries. Claimant seeks damages of twenty million dollars for allegedly suffering “a lot of emotional living discomfort as well as physical discomfort” during his incarceration at the Marcy Correctional Facility.

The handwritten claim, which was verified on April 18, 2006, states that “[t]his claim accrued on the 10 day of 20, 2005 [sic]”. However, the claim was not served on the Attorney General until October 4, 2007.

The claim was preceded by a notice of intention to file a claim, dated April 11, 2006. The notice of intention to file claim was served by mail on the Attorney General on April 17, 2006 and received at the Attorney General’s office on April 18, 2006. Claimant apparently provided the Attorney General with an affidavit of service stating the notice of intention to file a claim was served by “certified mail return receipt”. However, the Attorney General notes that the envelope in which the notice arrived indicates, by its postage markings, that it was served by regular mail, rather than by personal service or by certified mail, return receipt requested. The notice of intention to file a claim states that the claim accrued in “Oct. 2005”.

It is the position of the Attorney General that the court lacks jurisdiction because the claim is untimely.

The court agrees that this claim is not timely, as neither the notice of intention to file a claim nor the claim itself were served upon the Attorney General within 90 days from the date of accrual as set forth in the notice of intention to file a claim.

In order for the claim to comply with the requirements of Court of Claims Act § 10 (3), either a notice of intention to file a claim or a claim would have to have been served upon the attorney general within ninety days of the date of accrual of the claim. “The notice of claim requirements in Court of Claims Act §§ 10 and 11 are jurisdictional prerequisites to the maintenance of a claim and must be strictly construed” (Phillips v State of New York, 237 AD2d 590). Inasmuch as the notice of intention to file a claim was not served until more than 168 days after the accrual of the claim (giving claimant the benefit of the doubt and presuming that the claim accrued on the last day of October 2005), and the claim was not served until almost two years after the accrual of the claim, this claim is not timely and is hereby dismissed.



February 19, 2008
Utica, New York
HON. NORMAN I. SIEGEL
Judge of the Court of Claims